Chattisgarh High Court

Sureshchand vs Shyammani on 23 November, 2022

                                                                                                          NAFR

                      HIGH COURT OF CHHATTISGARH, BILASPUR


                                  Second Appeal No.23 of 2019

     • Sureshchand, S/o Late Shatruhanlal, Aged About 63 Years, Caste -
       Bramhan, Cultivator, R/o Village - Kera, Tahsil Nawagarh, District
       Janjgir-Champa, Chhattisgarh. (Plaintiff

                                                                                              ---- Appellant

                                                    Versus

     1. Shyammani, S/o Late Bharatlal, Aged About 55 Years, At Present
        Address - Gondpara, In front of Punjabi Dharaamsahala, Near Flour
        Mill, Bilaspur, Chhattisgarh.

     2. Rajendra Prasad, S/o Late Bharatlal, Aged About 53 Years, By Caste -
        Bramhan, R/o Village Kera, Tahsil - Nawagarh, District Janjgir-
        Champa, Chhattisgarh.

     3. Pramod Kumar, S/o Late Shri Narhari Prasad Aged About 50 Years By
        Caste - Bramhan, R/o Village Kera, Tahsil - Nawagarh, District Janjgir-
        Champa, Chhattisgarh.

     4. Manoj Kumar, S/o Late Shri Narhari Prasad Aged About 465 Years By
        Caste - Bramhan, R/o Village Kera, Tahsil - Nawagarh, District Janjgir-
        Champa, Chhattisgarh.

     5. Smt. Meena Bai, Wd/o Late Shri Narhari Prasad, Aged About 68 Years
        By Caste - Bramhan, R/o Village Kera, Tahsil - Nawagarh, District
        Janjgir Champa Chhattisgarh.

     6. Ramesh Chandra, S/o Late Shri Shatruhanlal, Aged About 59 Years
        (deadf, through Lrs.

          (af. Smt. Sarojani W/o Late Rameshchandra Shukla, resident of Bagchi
          Colony, Shubham Vihar, Bilaspur (C.G.f.


          (bf. Alok Shukla, S/o Late Rameshchandra Shukla, resident of Bagchi
          Colony, Shubham Vihar, Bilaspur (C.G.f.

     7. State of Chhattisgarh Through The Collector, District Janjgir-Champa,
        Chhattisgarh.

                                                                                          --- Respondents


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For Appellant : Shri Suyash Dhar, Advocate For Respondents No.1 & 2 : Shri Ravindra Sharma, Advocate

For State : Shri Tarkeshwar Nande, P.L.

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Hon'ble Shri Justice Arvind Singh Chandel Order on Board 23/11/2022

1. The substantial question of law formulated and to be answered

by this Court in the instant second appeal is as under:

"Whether the First Appellate Court is justifed in dismissing the frst appeal on the ground of delay be recording a perverse fnding that sufcient cause has not been shown for delay of 59 days?"

2. The trial Court, by its judgment dated 28/03/2014 passed in Civil

Suit No.12-A/2014 has partly allowed and decreed the suit in

favour of the plaintif/appellant herein with respect to Khasra

No.1554 rakba 1.04 acre, Khasra No.1552, rakba 0.17 acre, and

Khasra No.1572/1 rakba 0.47 acre situated at village Kera, District

- Janjgir-Champa (C.G.f and rejected the suit with respect to land

bearing Khasra No.750/2 rakba 0.32 acre.

3. Being aggrieved and dissatisfed with the judgment and decree

passed by the trial Court, the plaintif/appellant preferred frst

appeal before the First Appellate Court i.e. First Additional

District Judge, Janjgir-Champa, (C.G.f along with an application

under Section 5 of the Limitation Act i.e. an application for

condonation of delay in fling the appeal as the appeal was barred

by 59 days. Vide order dated 08.10.2018, the First Appellate Court

rejected the application for condonation of delay. Hence, the

second appeal has been fled by the plaintif/appellant which has

already been admitted for fnal hearing on the substantial

question of law as mentioned in paragraph 1 of this order.

4. Learned Counsel for the plaintif/appellant submits that First

Appellate Court has committed grave illegality in holding that no

sufcient cause has been shown in preferring the appeal under

Section 96 of the C.P.C., whereas learned Counsel for

respondents/defendants would submit that the First Appellate

Court has rightly rejected the application fled under Section 5 of

the Limitation Act and thereby dismissal of frst appeal is well

merited.

5. I have heard learned Counsel appearing for the parties and

perused the records of both the Courts below with utmost

circumspection.

6. It is true that there was delay of 59 days in fling the appeal but

facts remains that plaintif/appellant contested the suit right

from 21.09.2004 to the date of judgment of the trial Court i.e.

28.03.2014. There is also no dispute on the point that after

submission of the suit before the trial Court, the

plaintif/appellant has regularly appeared before the trial Court

either through counsel or personally and the appeal is delayed by

59 days.

7. It is well settled law that the Courts should adopt a justice-

oriented approach in considering the application for condonation

of delay.

8. The Supreme Court in the case of Esha Bhattacharjee v.

Managing Committee of Raghunathpur Nafar Academy and

Others JT 2013(2) SC 450 has laid down the principles for

deciding the application for condonation of delay. Paragraph 21

of the Esha Bhattacharjee (supra) states as under:-

"21. From the aforesaid authorities the principles that can broadly be culled out are:

if There should be a liberal, pragmatic, justice-oriented, non-pedantic approach while dealing with an application for condonation of delay, for the Courts are not supposed to legalise injustice but are obliged to remove injustice.

iif The terms "sufcient cause" should be understood in their proper spirit, philosophy and purpose regard being had to the fact that these terms are basically elastic and are to be applied in proper perspective to the obtaining fact-situation.

iiif Substantial justice being paramount and pivotal the technical considerations should not be given undue and uncalled for emphasis.

ivf No presumption can be attached to deliberate causation of delay but, gross negligence on the part of the counsel or litigant is to be taken note of.

vf Lack of bona fdes imputable to a party seeking condonation of delay is a signifcant and relevant fact.

vif It is to be kept in mind that adherence to strict proof should not afect public justice and cause public mischief because the Courts are required to be vigilant so that in the ultimate eventuate there is no real failure of justice.

viif The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play.

viiif There is a distinction between inordinate delay and a delay of short duration or few days, for to the former doctrine of prejudice is attracted whereas to the latter it may not be attracted. That apart, the frst one warrants

strict approach whereas the second calls for a liberal delineation.

ixf The conduct, behavior and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the Courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.

xf If the explanation ofered is concocted or the grounds urged in the application are fanciful, the Courts should be vigilant not to expose the other side unnecessarily to face such a litigation.

xif It is to be borne in mind that no one gets away with fraud, misrepresentation or interpolation by taking recourse to the technicalities of law of limitation.

xiif The entire gamut of facts are to be carefully scrutinized and the approach should be based on the paradigm of judicial discretion which is founded on objective reasoning and not on individual perception.